HEALTH LAW ISSUE-SPOTTING OUTLINE

ACCESS TO CARE

DUTY OF CARE

NO DUTY OF CARE- Hurley [doctor governed by K law, not common carrier]- DeShaney [no duty to rescue]- AMA principles of medical ethics- Exceptions to No Duty of Care

o Detrimental Reliance Manlove

o Undertaking More common for physicians than hospitals May apply to on-call physicians

Yes: Hiser, Dillon, Ricks, Payton, Muse No: Childs

Can Apply to Hospitals New Bioloxi – had started chart

o Public Function and Public Accommodations Hospitals only, usually in context of emergency care Prohibits certain actors from denying certain services [not absolute]

o Emergency Care Has been codified via EMTALA [1985] –

Only hospitals w/ ED Screening: Must provide “appropriate screening” when “come to ED” and

“requests treatment”o Appropriate screening is designed to identify conditions of symptomatic

patients, must be applied uniformly [not EMTALA violation if treated like any other patient; misdiagnosis and bad treatment after screening malpractice]

o Come to : In ambulance of hospital In ambulance of another hospital if called first, hospital not on

diversionary status Presents self at hospital Involves adjacent areas

o Individual requests – can be by another persono Usually requires showing of either:

Basis for bad motive discrimination; or Implausible explanation by discharging physician

Stabilization/Transfer: If finds emergency condition, must either:o Stabilize: treatment of medical condition to assure no material

deterioration occurs from transfer from facility; or Must provide care w/in staff/facilities as necessary to stabilize May be stabilization requirement even if does not “come to” ED

[Lopez Soto; but see Marchant, HHS 2003 rule] Stabilization requirement trumps professional standard [Baby K] Requirement to stabilize is based on condition presents w/, not

underlying condition EMTALA preempts state law

o Transfer: Can transfer if

Informed consent Physician finds medical benefits > risks of transfer

Qualified medical person who has conferred w/ physician signs same statement (as #2)

Transfer must be “appropriate” [requirements for transferor/tranferee hospitals, must be through qualified personnel and transfer equipment]

Other facility can seek damages from unlawful transfero Enforcement by HHS and Individuals

On-Call Specialists – see 2003 rule Rule that specialized hospitals would have to accept transfer was withdrawn

[2008]- But:

o Cambpell : no liability where does not depart from hospital custom or procedure- Alternative Arguments

o Gross Negligence [Campbell]o Hospital as Quasi-Public Entity [Thompson]o Malpracticeo Participation requirements of Medicare/Medicaid

CIVIL RIGHTS AND HEALTH CARE

- Title VI of Civil Rights Act of 1964o No discrimination in programs receiving federal assistance – loans, grants, Ks, Medicaid, cash

welfare, grants to health care institutions, payments to institutions participating in Medicare/Medicaid

o Covers discrimination on basis of: Race National origin Gender Religion Physical/Mental Impairments NOT socio-economic status

o Only applies to hospitals [doctors do not K with Medicare directly] o Enforcement

By entities giving out federal $ [not Civil Rights Agency] By individuals – implied right of action, only de jure discrimination [Sandoval]

- Americans With Disabilities Acto Relevant Titles

Title II: public benefits; Title III: Public accommodations [includes doctor’s office – break w/ common law]

o To qualify, must have: Mental/physical disability that substantially limits a major life function

Physical or mental impairment that substantially limits 1+ major life functiono HIV [Bradgon]

Record of such impairment; or Regarded as having such an impairment

Must be “qualified” [can do the job with reasonable accommodations] – i.e. you are the person for whom the public benefit was intended

Must be discriminationo Exceptions:

Where the individual poses a direct threat More than an insignificant risk Determined based on medical information; would a reasonable doctor perceive a

direct threat [not whether this doctor did]

Individual is offered a reasonable alternative – really has to be reasonable [is this an exception??]

HEALTH INSURANCE COVERAGE

STATE REGULATION

- McCarran-Ferguson Act regulation of insurance belongs to the stateso Types of regulations:

Ensuring solvency/capitalization Content laws: regulate benefits Consumer protection statutes: against unfair/deceptive practices Remedies

o Really only regulated the group market, in individual market Medical Underwriting [Hayley] Rescission: Rescind K retroactively when file claims [CA law: not allowed unless was

willful misrepresentation - Hayley]o Court decisions based on existing theories

Bad faith [Bartkis] Bad faith breach of K Unfair and deceptive practices

o Apply Contrapreferendum [interpret K v. drafter]o State law treats plan administrator as a fiduciary

Has a settlor function – relate to establishment, termination, design of plans; Make macro and micro allocations

- Other areas of state law that regulate insuranceo Antitrusto Taxo Civil Rightso Privacy Laws

ERISA

- Established by Congress to create uniformity, reduce mismanagement of employee benefitso Covers Employee Welfare Benefit Plans [EWBP] [§1002]:

Have certain ascertainable eligibility and benefits; Offered in context of private employment; Involve some degree of ER administration Can be

Self-insured Fully insured – the product sold to the plan is NOT an EWBP

o Three types of Claims Establishment/design of employer-sponsored health plan Administration of terms of the plan Liability for physical and other types of Harm

- Preemption: Focus is on Congressional Intent [when should state reg. powers give way to federal regulatory vacuum??]

o Preempts any and all laws that “relate to” any EWBP [514] Congressional intent : is to uniformity

Does the law impede ability of the company do to business on a national scale? Does it bind employer to adapt/modify plan? Does it affect the plan administration?

[Fielder/Golden Gate] NOT laws of general applicability w/ indirect economic effects [Travelers;

DeBuono] Not saved by an opt-out provision b/c the laws reduce uniformity [Fielder]

Connection with ; or Look at [Dillingham Construction]

o Objective of ERISA to see scope of law Congress meant to survive; ando Nature and effect of state law on plans

Whether meant to regulate terms of the plan [Shaw v. Delta Airlines] Reference to

Does the law refer to EWBP? [Shaw v. Delta Airlines] Acts immediately and exclusively on ERISA plans [Dillingham Construction] –

may really matter if is a law of general applicability [Fielder/Golden Gate] ERISA plans essential to law’s function [Dillingham Construction]

Implied preemption: can apply to state laws that are not in direct conflict [Boggs; Foster; Egelhoff]

Note different approaches to determining preemption for pay or play laws [Fielder; Golden Gate]

o Saves laws that regulate insurance [only saves product sold by fully insured plans] i.e. Benefits mandates [Massachusetts v. Met Life] Does the law regulate insurance?

Common sense test [Rush HMO v. Moran] – is regulated entity an insurer?o Spread risk? o Assume risk? o Defined by Congress as insurance company? o Regulated by states as insurance company?o Capitation and reinsurance do not make an entity a non-insurer

McCarran-Ferguson Factors [not controlling after Kentucky b/c regulate conduct rather than state regulation] – law regulates insurance if:

o Has effect of transferring/spreading policy-holder’s risko Constitutes an “integral” part of policy relationship btwn insured/insurero Limited to entities w/in insurance industry

Kentucky Ass’n of Health Plans: State law must:o Be specifically directed towards entities engaged in insurance; and

Can affect other entities, but not be directed at them i.e. imposing conditions on right to engage in insurance business

o State law must substantially affect the risk pooling arrangements between insurer and insured

Have actuarial implications [increase risk/uncertainty on insurer, i.e. AWP law]

o Deems that EWBP is NOT insurance [so savings clause does not save self-insured plans]o Complete Preemption [502] – both fully insured and self-insured plans

ERISA remedies are exclusive [see §502] Can remove to federal court – only if:

o There is a federal question on the face of the well-pleaded complaint (not defenses), i.e. claims are properly construed as to “recover benefits due under the terms of the plan to enforce rights under the terms of the plan or to clarify rights to future benefits under the plan”; OR

o There is complete preemption under ERISA’s civil enforcement mechanism [Met Life]

Individual can sue for:o Liquidated damages for failure to provide information on requesto Benefits due under plan, enforce rights under plan, clarify rights to future

benefits under the plano To enjoin any act violating terms of statute/plano To obtain equitable relief to (i) redress such violations, (ii) enforce

provisions of title/plano Breach of fiduciary duty: meant to deal with the sorts of decisions

fiduciaries make – whether someone is a plan member, coverage benefits; not mixed eligibility decisions [Pegram]

o NOT emotional damages, punitive damages, pain and suffering, etc. Suit can also be brought by Secretary or fiduciary for certain purposes Breach of fiduciary duty

ERISA preempts common law tort and K actions asserting improper processing of claim for benefits [Pilot Life]

Preempts laws that provide the ultimate step in plan enforcement or in a judicial form that adds to judicial remedies provided by ERISA; not merely if provides second opinion [Rush HMO v. Moran]

Note: ERISA plans are reached by a small number of federal laws regarding coverage even where state law is preempted…

- COBRA continuation of benefits for beneficiaries for 18-36 months following a “qualifying event”- HIPAA: limits ability of insurers to dictate their market

o Anti-discriminationo Availability and renewability

- Piecemeal benefits: o Newborns and mothers are guaranteed 48 hours following normal laboro Genetic informationo Mental health parity [just passed]o Breast reconstruction after masectomy

- Pricing is uniquely within the province of the plans; Congress prefers to leave pricing to the market

COVERAGE DECISIONS UNDER ERISA

Note: Plan administrators are required to produce a summary description of the plan; does not need to be very detailed [too much detail is overwhelming]

Three types of decisions: based on K or quasi-tort K law- Availability of judicial review and who bears burden of proof- Substantive meaning of plan or contract terms [Macro]- Process by which terms are defined and applied by the plan or insurer in a particular case [Micro]

Availability of Judicial Review: based on federal common law based on trust law- Courts should review of claims decisions is de novo, but the plan can contract for abuse of discretion by

giving themselves discretion within the terms of the K [Firestone]- In reviewing for abuse of discretion, the court can only review what was actually reviewed by the plan

administrator [Killian v. Healthsource Provident Administrators]- Abuse of discretion can be:

o Procedural: refers to fundamental fairness, not an abuse of discretion if harmless; if is a defect in giving self discretion may change standard of review

o Substantive: focus on the evidence, whether was an abuse of discretion to deny benefits in a particular case

- But at some point there is a limit on the ability of a plan administrator to K for its own discretion, particularly where there is a conflict of interest [Cutting, 7th Cir]

- Where there is a conflict of interest, the court must take a closer look, weigh the conflict of interest as a factor in determining whether there was an abuse of discretion [not a special standard for conflict of interest cases] [Glen]

o Particularly where there are medical facts involved [less so regarding the terms of the K b/c the insurer has more experience applying the terms of the K]

o This is true even if the person creating the trust has a conflict of interesto The fact that the beneficiary pays premiums does not eliminate the fact that there is a conflict of

interest because if the company doesn’t pay for benefits, it gets to keep that money- There is a conflict of interest where the benefit decisions are made to defray reasonable expenses rather than

in the interest of beneficiaries [McGraw]- Where the beneficiary alleges that the insurer violated a particular statute regarding coverage, it is reviewed

de novo b/c it is a question of law [Krauss]

Argue [in the alternative] that the coverage decision is both Macro [Design] and Micro [Administration]1:- Review of Macro Decisions [limitations, exclusions, benefit definitions]

o Under ERISA, plan administrator has settlor functions to make decisions about what is and is not covered by the plan as long as applies to all participants/beneficiaries equally [McGann]

o A plan is entitled to terminate benefits because ERISA does not require a “vesting” of right to continued level of the same benefits [McGann]

o Where the guidelines that lead to a denial of coverage are part of the plan, they cannot be reviewed [Jones v. Kodak]; [Bedrick – speech therapy]; [Krauss – private nursing care]

- Review of Micro Determinations [whether a particular benefit applies to a particular person; medical necessity; where there are still medical facts to be resolved]

o The claims reviewer needs to be qualified, back up decision w/ evidence, especially where there is a conflict of interest [Bedrick]

o Abuse of discretion to add additional terms in determining medical necessity, i.e. that improvement in condition is required for medical necessity b/c can be medically necessary if it is to prevent deterioration of condition, i.e. MS [McGraw], CP [Bedrick]

o The administrator can supply very specific terms to bring individual coverage decisions into the realm of micro decisions [Martin v. BCBS – upheld exclusion of treatment b/c was investigational]

PRIVATE HEALTH INSURANCE AND THE ADA

- The ADA Does not Reach the Content of Insurance [Doe 7th Cir.]o 502(a): Cant refuse to sell insurance to a person with disability on basis of that disability, but a cap

on HIV-related coverage is not “discrimination on the basis of a disability of the full and equal enjoyment” of health insurance

o 302(a): a business cannot be required to change its inventory to accommodate the disabled, or to get rid of a limitation – it is hardly a judicial function to police the services offered

o 501(c) [safe harbor]: insurers can underwrite risks based on ADA-covered disorders unless it is subterfuge

Illustrates that the ADA does get to the terms of coverage But the right of enjoyment means to buy on equal terms – restricts use of caps to prevent

people w/ HIV from buying insurance at all, not the use of caps generally The nature of insurance companies is to discriminate If Congress had intended federal courts to regulate the insurance industry, they would have

said so bluntly [especially b/c McCarran-Ferguson Act forbids federal statutes from impairing laws enacted by the states to regulate insurance]

- Olmstead : cited for proposition that ADA does reach the content of coverage- Most courts agree with Doe

MEDICARE

Note: Parts A and B of Medicare detailed benefit entitlements; both beneficiaries and providers have entitlements to get benefits and payment, respectively; Parts C and D are more like subsidies by the federal government so that beneficiaries can buy private plans

APPEALING DENIAL OF BENEFITS

- Appeals Process [405(h)] – applies to claims “arising under” the Medicare Statute; is construed broadly; covers both procedural and substantive claims [see Weinberger v. Salfi]

o Must have a claim It used to be that you had to go through procedure and be denied reimbursement by

Medicare; were considered to have a claim under 405(h) as a “claim for future benefits” [Heckler v. Ringer]

1 The administrator will want to argue design, beneficiary will want to argue administration.

Now can seek prior authorizationo Must Exhaust Administrative remedies2

Parts A+B: Denial by Intermediary Carrier Desk Review by Carrier ALJ at HHS Grant Appeals Board of HHS [final decision by Secretary] Federal Court

Parts C+D: Denial by Insurer Internal Appeal within Company ALJ Grant Appeals Board of HHS [final decision by Secretary] Federal Court

- Where this process is not followed, the federal courts do not have jurisdiction [Heckler v. Ringer]o Exception: where the issue is collateral to a claim for benefits and the injury could not be remedied

by retroactive payment after exhaustion of administrative remedies [Matthews v. Eldridge]- This applies to providers as well [Shalala v. Illinois Council on Long Term Care]

MACRO EXCLUSIONS BY HHS

- The Secretary has discretion to make macro exclusions of certain procedures [Heckler v. Ringer]o Denials in these cases are unreviewable under Medicare appeals processo Subject to APA, Constitutional Limitations [?]

- In 2000, Congress formally codified power of Secretary to make a national coverage decisiono Made the process more transparent and uniform, is guided by Medicare Coverage Committee in

making National Coverage Decisions, sets forth standards that CMS must consider

MEDICAID

Note: States, providers, and eligible individuals have entitlements in Medicaid program; is a grant-in-aid state-federal partnership; it is NOT an insurance company

STATE PLANS

- States must have federally-approved plans:o Must cover all mandatory classes/benefits; Can only cover optional classes recognized by Congresso Criteria of eligibility:

Category : poverty level children/pregnant women/caretakers/elderly, ADFC, blind, disabled Financial : state sets financial eligibility standards State Residency Citizenship/Legal Status

o States may impose certain limits to stay within budget Broad limits are OK

Limits on visits to doctor per month [Curtis] Medical necessity requirement [Cowan] Limits on coverage of experimental treatments [Dexter] as long as comports with

medical opinion [Miller] Courts generally find that cannot create limitations that single out a single condition

No coverage of transsexual surgery [Pinnecke; but see Rush] No AZT treatment unless comports with FDA-approved diagnosis [Weaver]

Non-Discrimination Provision [only applies to mandatory benefits] State cannot act arbitrarily when imposing limits on mandatory benefits State can draw reasonable distinctions – i.e. treatment guidelines re: length of stay

based on review of record and determination of medical necessity Early Periodic Screening, Diagnostic, and Treatment:

States have less discretion to impose limitations for kids Must cover EPSTD services, even if not in state plan

Restrictions on Providers Beneficiaries must be able to choose among qualified providers [access provision] There used to be an implied right of action to enforce this – not anymore

2 Policy: give Secretary the first bite at the apple, to allow record to be created [real reason is to reduce number of appeals]

ADA does not reach content of Medicaid statute [Rodriguez] It DOES reach administration of Medicaid [Olmstead] Parties should always argue in the alternative

- Enforcement of Rights: Providerso Medicaid is required to give a pre-termination hearing [Bradley]

- Enforcement of Rights: Beneficiarieso Violation of State Plan: Medicaid beneficiaries have a right to a fair hearing when they are

adversely affected by agency conduct that appears to be in violation of the state plan Is before an ALJ, must interpret based on state plan BUT cant assess whether the state plan itself is in violation of state law

o State Plan in Violation of Federal Statute: there is no express right of action, the cause of action has changed over the years

Implied Right of Action : when a federal law’s inherent structure is to convey an interest to people, there is an implied right of action, supremacy clause claim [Rosado]

42 USC 1983 : Plaintiffs can use 1983 to enforce their rights under federal law, statutes create a federally enforceable right in court plus attorneys fees [Thiboutot]

Medicaid began to be assessed provision-by-provision [Wilder] To be enforceable:

o The provision of funds must be conditioned on compliance [Wilder]o The provision must be specific enough to be enforceable [Wilder]o The statute must have rights-creating language [Suter]o The underlying statute must have open-ended funding [Suter]o The statute must require the state to do something enforceable [Freestone]o Must be unequivocal proof of Congressional intent to create an enforceable

right, much like implied right of action [Gonzaga] Because the Court has been clamping down, fewer and fewer rights are

enforceable, but most courts still find enforceable a provision that requires states to make medical assistance available to all beneficiaries

Because of the difficulty of bringing 1983 claims, people representing beneficiaries have gone back to the Supremacy Clause approach [not as good b/c there are no attorney’s fees]

HEALTH CARE QUALITY

- Mechanisms for Correcting Error Are Weako Regulatoryo Industry Self-Regulation [i.e. GW doctor]o Licensingo Payors [likely stronger]

MALPRACTICE

Malpractice

- Malpractice used to be the only law regulating healthcare quality- Purpose: deter injury-producing behavior- Elements:

o Dutyo Breacho Causationo Damages

- Courts have moved from the locality rule to a national standard for malpractice o A national standard emerges when there is general acceptance of the prudence of the method [courts

also consider: cost/benefit, degree of diffusion, level of knowledge]o Often within the national standard, there are schools of thought

Courts are divided about whether the existence of a minority view is a question for the jury [Jones v. Chidesteder; Levine v. Rosen]

Other courts just ask whether the physician undertook a form of treatment that a reasonable medical professional would not undertake in the circumstances [Henderson]

Other courts hold that the licensing board can decide the standard of care [Parris]o Some courts have created a resource-based caveat to the standard of care [Hall]o Most courts hold that a national standard applies to the poor [Becker, Greater Washington DC Area

Council of Senior Citizens]; even though public hospitals, etc. are generally substandard, and some argue that a unitary standard deters treatment of the poor [Siciliano]

o The professional custom can be overridden by malpractice [TJ Hooper; Washington v. Washington Hospital Center]; courts look to what a reasonably prudent provider would do, require certain imperative conditions in spite of universal disregard [Helling v. Carey]

o Some courts recognize the doctrine of Loss of Chance [for patients whose chance of survival is < ½]

- Patient Safety and Quality Improvement Act – voluntary reporting, shields reported information (probably the wrong approach)

Informed Consent

- Historically patients were told as little as possible about their condition; precursor was assault/battery [unwanted touching]

- Purpose: increase patient autonomy, quality of care- Elements:

o Failure to warno Harm befalls patiento Causal relationship between harm and failure to warn

- Two versions [states are split 50-50]:o What a reasonable person would expect to hear [Canterbury v. Spence]

Must be able to intelligently make decision on own Doesn’t matter whether it is a duty that doctors impose upon themselves

o Similarly situated physician - Must be conveyed in a way that an average person would understand- Must convey: risks, alternatives, results w/out treatment; must also convey physician’s personal interests

unrelated to the patient’s health that may affect his medical judgment [Moore v. Regents of University of CA] – anything material to the patient’s decision

- Exceptions:o Not feasible [patient unconscious]o Medically contraindicated

Medical Malpractice and Hospitals

- Hospitals were historically not subject to malpractice o Charitable immunityo Not vicariously responsible for doctors/nurses [Shloenderoff]o Captain of the Ship: only the surgeon was liable for the liability of the nurses working under himo Borrowed Servant: hospital not responsible for negligence of staff b/c were borrowed servants of the

hospital staff- Changed b/c: increase in technology, privatization of hospitals, hospitals became accredited, hospitals

became richToday there are several theories of hospital malpractice [argue all]:

- Vicarious Liabilityo Actual Authority: Applies where doctors are actually employees of hospital; looks at if:

Hospital has power to hire/fire

Hospital sets working conditions Doctors are able to bind institution Whether doctors act within scope of agency Requires that the doctor actually be negligent

o Apparent Authority: looks to whether third party actually believed doctor was agent of hospital, even if doctor acted outside scope of authority looks at:

Hospital held self out to public Patient looked to hospital for care, not specific doctor Patient accepted services under a reasonable belief that they were provided by the hospital Hospitals can avoid this w/ “Meaningful Notice” [not just hidden in agreement patient

signed when in severe pain – Thomas v. Oldfield] Requires that the doctor actually be negligent

- Corporate/Enterprise Liability: Applies to the hospital’s own acts/omissions [by board of directors, senior physicians, employees and staff];

o States have different standards: IL: court found hospital liable for failure to supervise nurses, which was a duty imposed on

the hospital by bylaws, regulations, standards that indicated that the medical profession views it desirable/feasible for the hospital to assume liability [Darling]

NC: standard for hospital is that of an ordinary, prudent hospital PA: stricter standard for corporate liability, must show:

Hospital was breaching the duty Hospital negligence measured by reasonable hospital under the circumstances Must show systemic negligence (not just one incident)

OH: No duty to supervise acts of physicianso Note: Not necessary to have a negligent physician [unlike authority]

- Corporate Interference With Reasonable Medical Care [Muse]o Duty not to interfere with medical judgment of doctor requires:

Obey instruction of doctor To make reasonable effort to oversee treatment

- Non-Delegable Duty: Hospital has duty to run hospital non-negligently [Jackson v. Power] o Hospital can be held liable for acts of independent contractorso Applies when the duty is so important to the community that it cannot be transferred to

another; shown by: Hospital is so heavily regulated Holding a hospital license is lucrative, should be held to those standards

Managed Care Liability

- Two legal frameworks for managed care entities [hybrid organizations – cant hide behind one of their dual functions]

o Tort/Medical Liability [professional conduct below professional norms]o Insurance Law/K/Trust Law [resource allocation]

- Various Theories [argue all]o Negligent Plan Administration [Medical Liability]

Third Party Payor can be held medically liable if the error is in the design and implementation of cost-containment measures, such as when the decisions regarding the necessity of care ignore actual medical necessity [Wickline]

Does NOT eliminate liability of doctors if complied with directions of payor; have duty to see patient and submit referral requests promptly regardless of HMO documentary problems

o Vicarious Liability [Boyd v. Albert Einstein Medical Center; Petrovich] Actual Authority: where doctors are employed directly by the HMO [staff model HMO] Vicarious Authority doctors may be agents of HMO if:

Patient looks to institution rather than individual for careo HMO furnished doctors [Boyd]

o P selected doctor from HMO’s list (how restrictive does it have to be??) [Boyd]

o HMO held self out as offering healthcare [Petrovich]o No prior relationship between patient and HMO’s physician [Petrovich]

Whether HMO holds physicians out as employees o HMO screens doctors, o Doctors must comply with HMO regulations, o HMO doctors are gatekeepers]

Not met where the patient does not know about the relationship between the HMO and doctors [Chase v. IPA]

Although some courts hold that HMO cant hold self out as offering medical care due to corporate practice of medicine doctrine [eliminates this theory]

o Corporate Liability [Jones v. Chicago HMO; Shannon v. McNulty] Extended to HMOs b/c function like a hospital, have doctors, contracts and are organized to

provide healthcare To determine if a duty exists, the court looks at [Jones]

Reasonable foreseeability of risk Likelihood of injury Magnitude of burden of guarding against the injury Consequences of placing the burden on the HMO Public Policy

HMO must act as a reasonably prudent HMO under the circumstances Can prove standard of care through various evidentiary sources; no need for expert

testimony [Jones] When benefits provider interjects self into rendering of medical decisions, must do

so in a reasonable manner [Shannon]o Bad Faith Breach of K

Common law tort of bad faith breach of K applies to HMOs when make out-of-network benefits decisions [MacEnvoy v. Group Health Cooperative of Eau Claire]

Must plead: Absence of reasonable basis for HMO to deny claim [P must be K obligated to

receive the benefit] HMO either knew or recklessly failed to ascertain that the coverage should have

been provided That HMO acted improperly and that financial considerations were given

unreasonable weight in the cost-benefit analysis Damages:

Actual damages proximately related to the breach Punitive damages for bad faith, oppression, fraud and malice

- BUT ERISA Preempts Some Managed Care Liability o Dukes and Corcoran are the two theories – argue both [doesn’t matter for this analysis whether is

self-insured or fully insured] Where a party makes a claim regarding whether benefits are due, even if medical decisions

are involved, the claim is preempted by ERISA [Corcoran] Preauthorization decisions [Corcoran] Delay of payment authorization [Kuhl] Negligent administration of benefits claims [Spain v. Aetna] Even where the exact remedy is unavailable [Davila] Not the case that mixed eligibility decisions are not preempted – unless are made

by the physician [Davila, clarifying Pegram] Where the claim regards the quality of the benefits, ERISA is NOT preempted [Dukes]

i.e. failure to do a blood test, diagnose preeclampsia Can allege the insurance company was vicariously negligent [Boyd] or corporate

negligence re: quality [Jones] Might be different if the insurance K had terms re: quality

PEER REVIEW

- Hospitals have to peer review to get rid of incompetent doctors; but has serious ramifications for doctors – sue for:

o Defamationo Malicious interference with Ko Antitrust [Burgett]o Discrimination [i.e. minority doctors]

- Health Care Quality Act – response to Burgett; made it very hard to challenge peer review decisions o Four procedures must be met to be shielded from liability; action was taken:

In the reasonable belief that it was in the furtherance of quality healthcare After reasonable efforts to obtain the facts After adequate notice and hearing or other “fair” procedures; and In the reasonable belief that the action was warranted

o There is a rebuttable presumption that the hospital followed these procedures; plaintiff has to show by a preponderance of the evidence that procedures were not followed

- Although in reality, peer review is rare; not a substitute for malpractice

LICENSING

- May be able to increase quality of care with active licensing board; currently do a horrible job of enforcement

- Some states have tried to condition licensure on compliance with certain conditions; may create issues where the requirement conflicts with constitutional rights [i.e. Plan B law and First Amendment rights]

PAYORS AND QUALITY MEASUREMENT AND ENFORCEMENT

Payors’ Increasing Role- Payors have taken an increased role in regulation of health care quality- Three models:

o Peer review: look at procedure after performedo Prior authorization: approve/disapprove before treatment occurs, i.e. formularyo Payment

Pay for Performance Tiering Physician Selection/De-Selection Guidelines

Medicare - Medicare relies on Quality Improvement Organizations (QIOs) to perform medical review in six clinical

areas; can deny payment for substandard care, unnecessary care, never events- Where a doctor’s payment is denied or he is excluded from participation from Medicare on grounds of

quality [Doyle]o Can seek post-termination reviewo Must exhaust administrative remedies unless doctor attacks system-wide policy [would be futile to

exhaust b/c it would be clear what the Secretary would find] or where Secretary’s expertise is not useful

o This is a means of protecting the rights of the doctor while balancing them against rights of beneficiaries to be warned about the doctor

- In rural areas: there is an exception allowing pre-termination review of whether patients would be at serious risk if doctor continued to practice

ANTITRUST

THEORIES USED TO SHIELD HEALTHCARE PROFESSIONALS FROM ANTITRUST

- Learned Profession o No longer completely shields doctors from antitrust after Goldfarb, AMA v. FTCo But there is still a hesitation to apply antitrust to markets that are essentially professional [Wilk]

- McCarran-Ferguson Acto Where insurance regulation is subject to state law, federal antitrust law does not applyo Must qualify as insurance – spread risk [Royal Drug], must not be a complete transfer of risk

[Pireno] - State Action

o What would otherwise be federal antitrust violations are not where state is really involved in active oversight and review [Parker v. Brown; Patrick v. Burgett]

o This along with the M-F Act incentive to be highly regulated by the state

ANTI-COMPETITIVE CONTRACTS AND AGREEMENTS

o Anti-competitive agreements can be considered under the rule of reason – looks at a number of factors, is a costly determination; can defend on the basis that it has a pro-competitive effect

o Some acts are so pernicious that they are per se unlawful [if another motive is articulated rule of reason [Wilk]]:

Price Fixing: a horizontal agreement to fix prices is typically unlawful because competitors prevent themselves from making independent decisions re: their bargaining terms

Per se unlawful even if provided by professional set of ethics [Goldfarb] Even if the doctors set a maximum price [Arizona v. Maricopa County] Can be price fixing in different treatment of participating and non-participating

hospitals [St. Bernard Gen. Hosp.] Is different where doctors share loss/profit; where the price fixing serves another

purpose [Broadcast Music] It is NOT a violation of antitrust law where the prices are fixed by the buyer (or

insurance companies on behalf of buyers) [Kartell] Market Allocations: divide market/customers by geographic area or product Group Boycotts: unjustified collaborative action designed to injure or exclude a business

from access to the market [more recent cases have applied rule of reason] Illegal to link demands to a boycott [In re Michigan State Medical Society] Not a violation for providers to engage in collective negotiations about payment

procedures absent threat of boycotts [US v. Alston] Tying Arrangement: agreement to sell tying product on condition that also buy tied

product Hard to make successful challenges here [Jefferson v. Parrish]

o In some cases, the courts will apply a modified per se rule- Professional Norms

o Must use the rule of reason to assess ethical cannons unless they are blatantly price fixing [California Dentists]

o Cannons of the profession are usually given credit if they are reasonably defensibleo Error to apply a per se rule where there is evidence that another reason should apply, i.e. patient care

[Wilk]o Doctors CANNOT rely on the theory that they were acting to protect the public interest b/c private

persons cannot act as an extra-governmental entity- Statement of Enforcement Principles [DOJ/FTC guidance] ground rules for Drs. to engage in collective

actiono Was in response to take-it-or-leave-it Ks offered to Drs. by insurers

Due to the preference for vertical organization, doctors had to chose between participating and losing $ or not participating and losing patient flow

o Physicians can network joint ventures to qualify for anti-trust safety zones Must actually share financial risk Cant use PPO as conduit to fix prices on doctor-by-doctor basis [Texas North Specialty]

o For health IT ventures, the FTC has stated that pro-competitive effects > anti-competitive effects, will assess under rule of reason even when don’t share risk

MONOPOLIES

- Monopoly power is based on market power – can exclude competitors and set priceo To determine if an entity has market power:

Must determine the relevant market: product market; geographic market Generally requires that the share of the market exceed 60% Also looks at: technological superiority, relative size to competitors, barriers to entry,

pricing trends, homogeneity of markets, stability of market shares over time Market share cannot have been obtained merely by accident [must be willful]

o Even where an entity has market share, they may not have Market power where [Ball Memorial] Cannot block entry Productive asset is easily produced, fungible [i.e. money] They face vigorous competition Total sales not enough to show market power

- Monopsony is control of the market by buyers

PEER REVIEW

- Challenge to application of antitrust law b/c of emphasis on professionalism; existence of antitrust law may deter participation in peer review process

- It is a violation of antitrust law where [Patrick v. Burgett]o There is an agreement between 2+ doctorso Anticompetitive effects > Procompetitive effectso [can be defended by showing was state action]

- BUT HCQIA immunizes peer review from liability if meets four requirements [see above]

PAYING FOR HEALTHCARE

Provider Payment

- Decisions in determining payment:o What Services to Cover:

Benefit Class [hospital, primary care, vision, etc.] Procedures/services w/in class [each is given a code]

Can decide NOT to cover a procedure [i.e. never events] Certain exclusions mean that people don’t get appropriate care [i.e. intoxication

exclusion]o Setting Payment Rate

Reflect inputs that go into care Certain facilities may incur costs that payers don’t recognize [i.e. indirect costs of

residency, high volume of uncompensated care, or treatment of poor patients] Medicare does this via regulation [RBRVS]; private insurers do this on their own, largely

unregulated [are influenced by RBRVS]o Selecting Payment Method

Fee for service incentive to furnish care; uses claim form so insurer knows exactly what is paying for

Case payment incentive to provide more efficient care; payment rate depends on the patient’s Diagnosis Related Group (DRG), which are pairings of procedures based on the characteristics of the patient

Capitation even more incentive to provide efficient care; get a payment per member per month; really only works for huge providers, physicians become mini-insurers

- Pay for Performanceo Goals: eliminate misuse, over-use, and under-useo Uses money, tiering as an incentive to qualityo Can be fairer if involve doctors in how set rates, what criteria will be judged on and give them due

process to challenge decisions

Special Issues for Medicare and Medicaid

- DSH Paymentso Payments by Medicare and Medicaid to recognize the cost of uninsured in the systemo Certain hospitals are dedicated as Medicare Disproportionate Share Hospitals b/c treat

disproportionate share of low-income Medicare patients Because Medicare is not means-tested, to determine whether a hospital qualifies, is based

on: [# Medicaid eligible people served] / [total served] Cannot include just low income b/c not all of those people qualify for Medicaid [Adena

Regional Medical Center]o Medicaid Disproportionate Share Payment determinations vary by state; may include people other

than Medicaid beneficiaries to qualify, i.e. [Total Medicaid + Low Income Served] / [Total Served]- Bad Debt

o Medicare also recognizes bad debts as a cost of healthcareo To get a bad debt payment

Statute: Must be from covered benefits Must undertake reasonable collection efforts Must be uncollectible Sound business judgment determined the debts were uncollectible

Regulation: must use same tactics for collection as use for non-Medicare patients Guidance deemed uncollectible after 120 days;

Unless the debts are still with the collection agency b/c otherwise does not qualify as sound business judgment [Battle Creek]

- Medical Necessityo To qualify for Medicare payments, a provider must show that products/services were medically

necessary Medicare pays provider after provider submits Certificates of Medical Necessity

Based on the clear language of the statute [Chevron I], the Secretary can look beyond the certificate to find that it was not necessary [Maximum Comfort]

If later finds was not medically necessary, sues to recuperate the funds Although suppliers can be excused from liability if they had no reason to know that

it would not be covered But providers are deemed to have constructive notice of a directive by carrier that

they were required to provide more documentation than just the CMN

Special Issues for Private Insurers

- Provider Selection and De-Selection Fair Procedure Doctrineo Fair procedure doctrine applies to the exclusion of physicians from networks if the insurer has

market power “so substantial that exclusion impairs the doctor’s ability to practice” Very large share of market Dr. unable to contract with employers not in network [plan steered even non-network

employers to network physicians; had spillover effect on non-plan employers]

o Fair procedure is violated if either: No notice with opportunity to respond OR Arbitrary and Capricious

- Any Willing Provider Laws o Require all health insurers to be ready and willing at all times to enter into service Ks with all health

care providers who are qualified under state law, who practice within the general geographic area served by the insurance company, and who are willing to meet the terms and conditions set forth by the provider

o Without the law threat to physician’s ability to practice BUT the creation of networks is an essential cost-control mechanism

o Even without these laws, there may be fair process requirements in selection/de-selection Concern is that doctors might be excluded that have sicker/poorer patients Minority physicians may be excluded b/c are less efficient (?)

- ERISA Preemption and Provider Paymento A claim is within the scope of ERISA if [Davila]

[1] individual is entitled to such coverage only b/c of the terms of the ERISA-regulated employee-benefit plan; and

[2] Where no legal independent of the ERISA plan is violatedo ERISA 502 exclusive remedies if found with in “scope of ERISA”o Generally providers can’t sue plans for payment under ERISA unless there in an assignment; where

there is an assignment, doctor is limited to ERISA remedies BUT even if there is an assignment, can sue under state law [not preempted] where the

insurance company represented that a benefit was covered and it was not b/c it is not a benefit under the plan

Also, where the plan told the doctor that the procedure was covered but it turns out that the patient was not, the doctor’s claim is not preempted b/c [Franciscan Skemp]:

Doctor is not bringing it as patient’s designee Patient is not member of plan Claim based on conversation with plan, not plan itself A misrepresentation claim is based on state law, not ERISA

Also, where a provider leaves a plan, can sue directly Also, no preemption where the claim really arose under the subscriber agreement, not the

plan [Passock Valley; Anesthesia Care] b/c the dispute is over the amount of payment, not the right to payment – so it depends on the term of the subscriber agreement, not the plan

CHEVRON

In assessing agency regulation 1) Has Congress directly spoken on this issue?

a. Is the statute clear?2) If the Statute is ambiguous, was the agency’s interpretation reasonable?

a. Only reach #2 if the statute is unclear

Other agency actions, such as guidance documents, advisory letters get less deference